1. This order shall dispose of an appeal preferred by the
appellant husband under Section 29 of the Protection of Women
from Domestic Violence Act, 2005 (“the Act”) praying that the
interim order dated 14.09.2017 (“Impugned Order”) passed by
the Ld. Metropolitan Magistrate – 02 (Mahila Court), South East
District, Saket, New Delhi, granting interim maintenance in sum of
₹60,000/­ (Rupees Sixty thousand) under Section 23 of the Act to

2. The brief facts of the case are that the appellant husband is
a Mohammedan and the respondent wife is a French national. The
nikah ceremony between the appellant husband and the
respondent wife was held on 28.11.2004. The parties also got their
marriage registered on 28.04.2006 under the Special Marriage Act,
1954 vide certificate dated 30.05.2006. From their wedlock the
parties have two daughters. The appellant husband from his
previous marriage has two daughters. For the sake of clarity, the
particulars of the children are as under:

TABLE 1.1

S. Name Relevant Particulars Age Custody Status
No.

1. Faran Shala Daughter 18yrs. Though an adult and now
(from previous marriage of residing with the Father.

3. The undisputed facts are that the parties are husband
and wife and further the parentage of the children mentioned in
Table 1.1 of the preceding paragraph is unchallenged. The
respondent wife and the appellant husband have been living
separately since March 2015. Subsequent to their separation, the
respondent wife had the custody of all the four daughters until the
eldest daughter namely, Faran Shala (presently an adult) of her
own volition and choice moved out of the house of the respondent
wife and started to reside with her father i.e. appellant herein. One
vital undisputed fact between the parties is that at the time of the
filing of the application under Section 12 of the Act by the
respondent wife and reply thereto by the appellant husband, the
parties were residing at 109, Ground Floor, Pocket – 1, Jasola
Vihar, New Delhi. Thus, the shared household for the respondent
wife at the time of filing of the application under Section 12 of the
Act was 109, Ground Floor, Pocket – 1, Jasola Vihar, New Delhi.

4. The respondent wife in her application under Section
12 of the Act, has alleged that regardless of parenting and rearing
two daughters of the appellant husband from his previous
marriage, on birth of a daughter Ines Maryam, the appellant
husband started to taunt the respondent wife for giving birth to a
girl child. The respondent wife in her complaint further alleged that
prior to the birth of her second daughter from her wedlock with the

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 3 of 30
appellant husband, the appellant caused trauma and agony to the
respondent by hitting her, abusing her on several occasions. For the
sake of clarity about the names and the custody status of the
children, the Table 1.1 in the paragraph no. 2 be referred.

5. The respondent wife with regard to the alleged acts of
violence, cruelty lodged complaints with the police station – Sarita
Vihar on 22.04.2012, 12.12.2014 and 15.01.2015. The respondent
wife in her application has alleged that the appellant husband has
no control over his temper and is abusive and violent.

6. To the contrary, the appellant husband in his reply has
alleged that the respondent wife suffers from epilepsy and mental
disorder viz., delusional psychosis schizophrenia on account of
which she turns aggressive and violent.

7. On perusal of the record of the Court of first instance,
this Court observes that it is relevant and imperative to highlight
what transpired before the lower Court. The procedure adopted by
the Ld. Metropolitan Magistrate on filing of an application under
Section 12 of the Act by the respondent wife was that on
21.01.2015 notice was issued to the appellant herein. The
respondent wife was directed to file an affidavit of income and
expenditure in terms of the judgment of the Hon’ble High Court of
Delhi in Puneet Kaur Vs Inderjeet Singh Sawhney 2011 (183) DLT

403. Thereafter, the respondent filed his appearance before the
Court of Ld. Metropolitan Magistrate on 28.01.2015. The
respondent wife filed her income affidavit on 31.01.2015 and the
parties expressed a possibility of amicable settlement.

8. On 25.02.2015, the respondent wife preferred an
application under Section 23 of the Act seeking urgent orders from
the Court of Ld. Metropolitan Magistrate on the ground that on
23.02.2015 she was thrown out of the shared household by the
appellant husband and she had no place to reside and was staying
at a Hotel.

9. Though after a couple of adjournments, the status of
failure of settlement talks between the parties is reflected in the
order dated 23.04.2015, but on the Court record a joint application
dated 02.03.2015 along with the settlement deed dated 28.02.2015
entered between the parties and requesting the Court of Ld.
Metropolitan Magistrate to take the same on record, as the parties
have compromised their matter.

10. That on 20.01.2016 the Ld. Metropolitan Magistrate
directed both the parties to file their affidavits of income and
expenditure, as per the prescribed format and directions passed by
the Hon’ble High Court of Delhi in Kusum Sharma v Mahinder
Sharma – FAO No. 369/1996 judgment dated 14.01.2015.

Adjournment requested by counsel for respondent on
the ground that he is in personal difficulty and he has to rush to
the Hon’ble High Court.

The respondent is restraint from communicating
with the complainant or their three children namely Ines ad
Jasmine who are in the custody of the complainant without
obtaining permission from the competent Court.

He is further restraint from visiting the residence of
the complainant at House No. A2/154, Safdarjung Enclave, New
Delhi or her office at 235, Satya Niketan, New Delhi till further
Order in this regard.

Both parties are directed to file their affidavits of
income and expenditure as per the prescribed format in ‘Annexure
A’ of the Judgment in the case of ‘Kusum Sharma Vs Mahender’
decided on 14.01.2015 by Hon’ble Delhi High Court.

Any omission to file the affidavit or failure to file
the same in the prescribed format or any deviation from the
prescribed format shall be viewed seriously and may result in
imposition of heavy costs on the defaulting party and the version
of opposite party be deemed correct for the purpose of decision of
application for interim relief.

Put up for arguments on the application for interim
relief on 28.03.2016.

Copy of the Order be given dasti.

11. Both the parties in compliance of aforesaid order dated
20.01.2016 filed their affidavit of income on 28.03.2016.

12. The appellant husband is aggrieved by the quantum of
interim maintenance of ₹60,000/­ (Rupees Sixty thousand) awarded

13. The main plank of the appellant’s challenge to the
impugned order is that the Ld. Metropolitan Magistrate failed to
make an assessment of the respondent wife’s income. The appellant
contends that the Ld. Metropolitan Magistrate has incorrectly
assessed the appellant’s income and has furnished no reasons for
the assessment. The appellant husband has also challenged the
impugned order on the ground that respondent wife does not
require any maintenance as the respondent is well qualified, earns
more than sufficient income and has suppressed her true income.

14. The Protection of Women from Domestic Violence Act,
2005 was enacted on 13th September, 2005 and came into force on
26th October, 2006. The Statement Objects and Reasons of the Act
record that the civil law does not address the phenomenon of
domestic violence and therefore, a law be enacted to provide a
remedy in civil law for protection of women from being victims of
domestic violence.

15. The civil rights under the Act are culled under the
provisions of Section 17 to 23, which are as under:

16. Section 12 of the Act empowers an aggrieved person to
approach the Magistrate to seek any of the reliefs mentioned under
Section 17 to 23 of the Act.

17. It is no longer res integra as to what procedure is to be
followed by the Court while disposal of an application under
Section 12 of the Act. Our Hon’ble High Court in the case of S Vs. J

– CM Main No. 750/2017 decided on 17.04.2018 held that the
Court can formulate its own procedure for disposal of an
application under Section 12 of the Act and it is not bound to
follow the Criminal Procedure Code, 1973 (“Cr.P.C.”).

18. Hon’ble Mr. Justice, J.R. Midha, J. in the case of S Vs. J
(supra) held that Section 36 of the Act provides that the provisions
of the Act are in addition to and not in derogation of any other law,
which means that in addition to the Act, various other provisions
under the general laws as well as specific statutes can be invoked
by the aggrieved person.

19. Hon’ble High Court of Delhi in reference to Section 24
of the Hindu Marriage Act, 1955 in the case of Bharat Hegde Vs

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 8 of 30
Saroj Hegde – 2007 (140) DLT 16 observed that the right to
maintenance is an incident of the status from an estate of
matrimony. Hon’ble High Court observed, as under:

“6. While considering a claim for interim maintenance,
the court has to keep in mind the status of the parties, reasonable
wants of the applicant, the income and property of the applicant.
Conversely, requirements of the non applicant, the income and
property of the non applicant and additionally the other family
members to be maintained by the non applicant have to be taken
into all. Whilst it is important to insure that the maintenance
awarded to the applicant is sufficient to enable the applicant to
live in somewhat the same degree of comfort as in the matrimonial
home, but it should not be so exorbitant that the non applicant is
unable to pay.

7. … … …

8. Unfortunately, in India, parties do not
truthfully reveal their income. For self employed persons or persons
employed in the unorganized sector, truthful income never
surfaces. Tax avoidance is the norm. Tax compliance is the
exception in this country. Therefore, in determining interim
maintenance, there cannot be mathematical exactitude. The court
has to take a general view. From the various judicial precedents,
the under noted 11 factors can be culled out, which are to be taken
into consideration while deciding an application under Section 24
of the Hindu Marriage Act. … …”

20. Hon’ble High Court in Bharat Hegde’s case (supra)
culled out 11(eleven) factors, which are to be taken into
consideration while deciding an application under Section 24 of the
Hindu Marriage Act, 1955.

21. With surge in the disputes relating to marriage, family
affairs and enactment of the Protection of Women from Domestic
Violence, 2005, to protect the rights of women who are victims of
violence of any kind occurring within the family and for matters
connected therewith or incidental thereto, our Hon’ble High Court
painstakingly evolved over period of time guidelines and certain
good practices to determine the true income of the parties by
applying the settled legal principles. Though the 11(eleven) factors
were culled out in Bharat Hegde’s case but the torchbearer case on
this issue is Kusum Sharma v Mahinder Sharma – FAO No.
369/1996. Hon’ble High Court has from time to time passed
guidelines and directions vide judgment dated 14.01.2015,
29.05.2017 and the latest one being vide judgment dated
06.12.2017.

22. The Hon’ble High Court in Kusum Sharma v Mahinder
Sharma – FAO No. 369/1996 judgment dated 14.01.2015 laid
down the guidelines for expeditious hearing and disposal of
maintenance application under Section 24 of the Hindu Marriage
Act, 1955. The Hon’ble High Court considered the best
international practices with respect of the mandatory filing of an
affidavit of assets, income and expenditure by both the parties in
matrimonial disputes and accordingly, formulated an affidavit of

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 10 of 30
assets, income and expenditure to be filed by both the parties.

23. Further, the Hon’ble High Court directed that the
procedure culled out is to be followed in all cases relating to
maintenance including cases under Hindu Marriage Act, 1955,
Protection of Women from Domestic Violence Act, 2005, Hindu
Adoption and Maintenance Act, 1956, Special Marriage Act, 1954
Indian Divorce Act, 1869, as well as Section 125 Cr.P.C., 1973.

24. It is the duty of the Court to ensure that the filing of the
affidavits by the parties is not reduced to a mere ritual or formality.
The Court shall scrutinize the affidavit threadbare to determine the
true income of the parties by applying the principles laid down in
Sections 106 and 165 of the Indian Evidence Act, 1872 read with
Section 10(3) of the Family Courts Act, 1984.

25. The affidavit of income and expenditure dated
28.03.2016 filed by the respondent wife is substantiated by
supporting documents, as under:

a. bank statements of HDFC A/c No. 0923XXXX2063 for the
period 01.04.2013 to 17.03.2016;

26. The affidavit filed by the respondent wife is a very
detailed one and has full disclosure about personal information;
information relating to spouse, children; statement of income,
expenditure, assets; joint properties of the parties; statement of
liabilities and information relating to the status, standard of living
and lifestyle lead by the respondent wife and children.

27. The affidavit of income and expenditure dated
23.03.2016 filed by the appellant husband is substantiated by
supporting documents, as under:

28. The Ld. Metropolitan Magistrate in the impugned order,
after carefully going through the material available on record and
income affidavits of both parties rightfully held that the appellant
herein has though declared himself to be residing at Bhogal with
his nephew Imran Latha along with his eldest daughter Faran Shala
and the appellant has also denied of having any business of
houseboats in the state of Jammu Kashmir. The Ld. Metropolitan
Magistrate has also held in the order that though the appellant
herein remains to be a pauper and did not think of engaging legal
aid counsel from the State and chose to be defended by a private
counsel. Ld. Metropolitan Magistrate in the impugned order has
observed that the record pertaining to the bank account statement
placed on record by the appellant husband shows the withdrawal of
amount of Rs.3 lacs and also deposit of some amount on different
occasions in the name of "Self", yet he is unable to maintain himself
and not in a position to maintain his wife or his children. Ld.
Metropolitan Magistrate in the impugned order has observed that
the appellant husband denies driving a Scorpio Car and also denied
of having any credit card in his name. Though the appellant

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 13 of 30
husband in his affidavit has failed to make any disclosure about the
ownership of any motor vehicle Make - Mahindra, Model - Scorpio
year 2007 bearing registration no. DL­3C­AS­1561. This very fact
has been brought before this Court by the respondent wife during
the course of arguments.

29. Interestingly, the appellant husband claims himself to
be a pauper and man of no means yet the bank statement placed by
him on record reveals inflow and outflow of money to be that of an
amount more than adequate financial resources and status.
Further, the bank statement placed on record by the appellant
husband himself portrays substantial amount of money inflowing
and outflowing from various bank accounts (bank statement
annexed with the affidavit of income and expenditure dated
23.03.2016), yet he has not placed a single Income Tax Return
with regard to the relevant period co­relating to the period of
which bank statements have been placed on record. This Court
observes that non­filing of Income Tax Return by the appellant
husband has been done intentionally and with full knowledge to
suppress his true income, expenditure, assets and liabilities. Thus, it
does not lie in the mouth of the appellant husband to urge that the
Ld. Metropolitan Magistrate in the impugned order failed to
correctly assess the income of the respondent wife. On the other
hand, the respondent wife has filed the detailed affidavit of income

30. The respondent wife has averred in her application
under Section 12 of the Act and also disclosed in her affidavit of
income and expenditure that she is working as director of Peacock
Tours Pvt. Ltd. and was withdrawing salary of Rs.80,000/­ per
month, whereas the appellant husband in his affidavit of income
and expenditure has disclosed that in the financial year 2012­13
and 2013­14 he was the Director in the Company Peacock Tours
Pvt. Ltd. and was withdrawing salary to the tune of Rs.4,20,000/­
and Rs.8,40,000/­ respectively. Further, the appellant husband in
his own affidavit of income and expenditure has stated that the
income tax paid by him in the financial year 2012­13 was
Rs.90,570/­ and in the financial year 2013­14 the income tax paid
by him was Rs.2,45,542/­. This Court on careful examination of the
affidavit of income and expenditure, assets and liabilities filed by
the appellant husband observes that though the appellant claims
paying income tax but has not placed any Income Tax Return on
record. Further the appellant husband has not provided any
information under Part - IV Statement of Income with regard to
financial year 2014­15.

31. Another interesting fact, which has come before this
Court is, even though the appellant husband claims to be a pauper

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 15 of 30
as pointed out in the preceding paragraph that he had no income in
the financial year 2014­15 yet in the year 2017 on 27.02.2017, as a
Promoter Director incorporated a company by the name of
MOVINDIA Pvt. Ltd. whose total authorized share capital was Rs.5
lacs divided into 50,000 equity shares of Rs.10 each. Out of the
authorized share capital of Rs.5 lacs Rs.3 lacs had been paid up
capital by total shares of 30,000 of Rs.10 each and out of the
30,000 shares the appellant husband holds 15000 equity shares of
MOVINDIA Pvt. Ltd.

32. On perusal of Memorandum of Association of the
Company MOVINDIA Pvt. Ltd., the objectives of the company inter­
alia are to take over existing proprietorship firm in the name of
MOVINDIA run by one of the promoter of the proposed company
with it's all assets and liabilities. The proprietorship firm
"MOVINDIA" shall cease to exist after take over. To carry on
business of tours and travels, tourist agents and contractors, and to
facilitate travelling and to provide for tourist and travelers, or
promote the provisions of convenience of all kinds in the way of
through tickets, circular tickets, sleeping car of berths, reserved
places, hotels and/or boarding and/or lodging accommodation and
guides, resting rooms, baggage transport and otherwise and to
charter steamships and aeroplanes for fixed periods or for
particular voyages and flights and to carry on the business of

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 16 of 30
booking of packet, envelopes, cargoes and luggage of the public in
general and of Company's constituents in particular with every type
of carrier, in particular with airlines steamships lines, railways and
road carriers in India and/or abroad and also provide services in
money exchanger. This document placed on record reveals two
aspects, firstly, business being run in the name of proprietorship of
MOVINDIA and the same being subsumed by a newly formed
business entity i.e. by incorporation of a company MOVINDIA Pvt.
Ltd. Secondly, the extent to which the appellant husband has gone
to hide his business transactions and on apprehension of being
exposed he resigned from this newly incorporated business entity
of MOVINDIA Pvt. Ltd. and appointed his daughter Faran Shala as
director. Such conduct of the appellant husband forces this Court to
pierce the corporate veil and see through that this all is nothing but
smokescreen with the sole purpose of the same to suppress material
information and deprive his lawfully wedded wife and children
from providing adequate financial resources and shirk his legal,
social and moral duty of maintaining his children and lawfully
wedded wife.

33. The respondent wife along with her written arguments
placed relevant documents pertaining to appellant husband's
shareholding in the MOVINDIA Pvt. Ltd. Further, the appellant
husband's resignation from the directorship of MOVINDIA Pvt. Ltd.

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 17 of 30
on 17.11.2017 and day prior to that the appellant husband's eldest
daughter namely Faran Shala being appointed as director of
MOVINDIA Pvt. Ltd. It is observed that Ms. Faran Shala turned of
an adult age of 18 years only on 24.10.2017.

34. The appellant husband not only in reply to the
application under Section 12 of the Act but also in his affidavit of
income and expenditure dated 23.03.2016 has stated that he
resides with his nephew Imran Latha at Bhogal. On perusal of the
record reveals that the office address of MOVINDIA Pvt. Ltd. is 103,
Pocket - III, Jasola Vihar, New Delhi - 110025. It is not disputed
between the parties that they jointly entered into an agreement to
purchase property bearing no. 103, Pocket - III, Jasola Vihar, New
Delhi - 110025 vide agreement to sell and an amount of Rs.3
crores had been paid to Skylink Construction Pvt. Ltd. Though the
appellant husband claims to have no source of income and has
averred that balance amount of the sale consideration was yet to be
paid to Skylink Construction Pvt. Ltd. and the affidavit of income
and expenditure of the appellant husband discloses no data
available with regard to his income in the financial year 2014­15.
To the contrary from the bank statements placed on record by the
appellant husband himself it is revealed that in the financial year
2014­15, he had been receiving salary from Peacock Tours Pvt. Ltd.
for an amount of Rs.60,000 - Rs.65,000/­ on 05.05.2014,

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 18 of 30
03.06.2014, 04.07.2014, 07.08.2014, 06.09.2014, 04.10.2014,
07.11.2014, 06.12.2014, 31.12.2014, 06.02.2015 and 07.03.2015.
The appellant husband was also running his business operation of
MOVINDIA Pvt. Ltd. from the office address i.e. Basement of 103,
Pocket - III, Jasola Vihar, New Delhi - 110025. Further, the
appellant husband during the financial year 2014­15 from the very
same bank account had been making payments to M/s Skylink
Construction Pvt. Ltd. and making various other payments, thus it
is evident that appellant husband has deposed falsely in his
affidavit of income and expenditure. The bank statement of the
appellant relating to bank account no. 0923XXXX0326 also reveals
that the appellant husband had been making payment via debit
card to an entity "Touch Feel", "Bookmyshow", "Amazon Seller".
Thus, it is evident that appellant husband has not been forthcoming
with regard to his income, expenditure, assets and liabilities and his
affidavit dated 23.03.2016 is false.

35. The appellant husband has placed on record bank
statement of "HDFC A/c No. 0923XXXX0353 (A/c Holder Ms.
Jasmine Kajol Shala U/G Farooq A. Shala) for the period
27.12.2011 to 01.01.2016". This bank account purports to be in the
name of daughter of the appellant husband namely Alima Shala
from his previous marriage. The respondent wife had filed an
application under Section 12 of the Act on 20.01.2015 and during

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 19 of 30
that period only on 19.03.2015 the said bank account had a
balance of Rs.25,01,870.07/­. Interestingly, on 20.03.2015 an
amount of Rs.25 lacs is paid by way of cheque as inward transfer in
the name of Farooq Ahmed Shala. On the one hand, the appellant
husband in his affidavit he has stated that he has no source of
income or money at his disposal during the financial year 2014­15
"Data Not Available", but this transfer of money of Rs.25 lacs in the
name of appellant husband corroborates a very fact that pursuant
to the filing of an application under Section 12 of the Act by the
respondent wife, the appellant had sole motive to divert his funds
and also suppress his source of income and assets and thus there is
apparent suppression of material information and documents on
the part of the appellant husband.

36. The appellant husband in his own affidavit has stated
that he is not providing any financial assistance to the respondent
wife with regard to his own children. This Court has not lost sight
to the fact that it is the respondent wife who has been raising and
providing not only for her biological children with the appellant but
also for the children of the appellant respondent from his previous
marriage. The appellant has urged that he is unemployed and thus
unable to bear all his expenses for food, stay, litigation, care of his
daughter Faran Shala which are paid by his nephew Imran Latha.
The appellant has also urged that along with his eldest daughter,

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 20 of 30
the appellant husband is residing at Bhogal in an accommodation
rented by his nephew Imran Latha. The affidavit of income and
expenditure dated 23.03.2016 is totally silent about the amount
and nature of expenses incurred by his nephew on the appellant
and his eldest daughter. It appears that the appellant husband is
not forthcoming about his disclosure of income, expenses for the
reason best known to him but the said conduct and suppression on
the part of the appellant husband yet attracts an adverse inference.
This Court on careful perusal and examination of bank statements
filed by the appellant observes that the appellant husband is a man
of good means, more than resources and had plenty of money at his
disposal and circulating in his various bank accounts within his
control and power.

37. The parties were directed to file their written arguments
subsequent to the conclusion of oral arguments. The respondent
wife filed her written arguments on 16.07.2018 and the appellant
husband filed his written arguments on 23.07.2018.

38. The Counsel for the appellant husband at length argued
that the Ld. Metropolitan Magistrate failed to assess the respondent
wife's income. To the contrary Ld. Metropolitan Magistrate has
assessed the appellant husband monthly income to be Rs.2 lacs and
thus directed the appellant husband to pay Rs.60,000/­ per month
as interim maintenance to the respondent wife. The counsel for the

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 21 of 30
appellant husband has vehemently argued that there is no basis for
giving an interim maintenance of Rs.60,000/­ per month to
respondent wife, as she is well qualified woman and earning more
than sufficient income. This Court stresses upon the legal, social
and moral duty of the respondent to maintain his lawfully wedded
wife and children. Keeping in mind that the affidavit of income and
expenditure filed by the appellant husband is not true and correct
and the same was filed with the sole motive to not only suppress
his true and correct income but also to deprive his wife and
children from any financial and monetary assistance which any
dutiful father/husband would provide for.

39. The Counsel for the appellant husband in this appeal
has challenged the impugned order on the ground that Ld.
Metropolitan Magistrate erred by holding his monthly income to be
Rs.2 lacs per month. The counsel for the respondent wife has
drawn attention of this court to a MoU dated 28.02.2015, wherein
the appellant husband had himself agreed to give an amount of
Rs.2 lacs per month starting from 01.03.2015 uptil 01.08.2015. On
perusal of the record of Court of first instance, this Court observes
from the copy of order dated 03.04.2018 passed by Hon'ble High
Court of Delhi in case of "Peacock Tours Pvt. Ltd. Anr. Vs. Farooq
Ahmed Shala Ors." CCP (CO.) 2/2017 wherein the Hon'ble High
Court of Delhi has issued Show Cause Notice to respondent no. 1 as

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 22 of 30
to why he should not be held guilty of contempt of court. The
Hon'ble High Court has observed that the parties have moved a
joint application before the Magistrate, Saket for taking a
settlement dated 28.02.2015. It is the very same MoU wherein the
appellant husband had agreed to pay an amount of Rs.2 lacs per
month starting from 01.03.2015 uptil 01.08.2015 and further pay
an amount of Rs.38,00,000/­ as compensation to respondent wife
on or before 01.09.2015. On the one hand the appellant husband in
his affidavit of income deposed that he has no source and means to
provide his lawfully wedded wife and children and on the other
hand the appellant husband out of his own volition had entered
into the MoU dated 28.02.2015 with the respondent wife.

40. The Court has left with no other option but to conclude
that the appellant husband is a man of adequate financial resources
and status. Subsequent to the arguments by the counsel for the
parties, the counsel for appellant husband had placed on record
judgments and has strongly relied upon the judgment passed by the
Apex Court in "Bhagwan Dutt Vs. Kamla Devi Ors., (1975)2
SCC386" and "Vinny Parmvir Parmar Vs. Parmir Parmar, (2011)13
SCC112".

41. The Apex Court in Catina of judgments has held that
Courts should not blindly follow the judgments passed by the
Superior Courts. Each case has to be decided in the light of its own

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 23 of 30
facts and circumstances. Courts should not place reliance on
decisions without discussing as to how the factual situation fits in
with the facts and situation of the decision on which reliance is
placed. All observations of the Courts are not to be read as Euclid's
Theorem to the provisions of the statute. These observations must
be read in the context in which they appear. Judgments of Court
are not to be construed as statutes to interpret words, phrases and
provisions of statutes. It may become necessary for Judges to
embark upon legal discussion but the discussion is means to explain
and not to defend. Circumstantial flexibility, one additional or
different fact may make a world of difference between conclusions
in two cases. Disposal of cases by blindly placing reliance on a
decision is not proper. Haryana Financial Corporation Vs. Jagdama
Oil Mills (2002) 3SCC 496.

42. In "Bhagwan Dutt Vs. Kamla Devi Ors., (1975)2
SCC386", the legal principle culled out by the Apex Court while
deciding the amount of maintenance payable to wife under Section
488 of the Code of Criminal Procedure, 1898 is as under:

"19. The object of these provisions being to prevent
vagrancy and destitution, the Magistrate has to find out as to
what is required by the wife to maintain a standard of living
which is neither luxurious nor penurious, but is modesty consistent
with the status of the family. The needs and requirements of the
wife for such moderate living can be fairly determined, only if her
separate income, also, is taken into account together with the

43. It appears that the impugned order passed by Ld.
Metropolitan Magistrate has given due weightage to the needs and
requirements of the wife along with her children for such moderate
living by also considering her separate income. A distinguishable
fact which this Court cannot lose sight of is, the parties have four
children out of which two from previous marriage of the appellant
husband and two from the marriage between the appellant
husband and the respondent wife. The respondent wife is single
handedly raising the children, regardless of the fact, they also being
children from the previous marriage of the appellant husband. The
reliance placed by counsel for the appellant husband that the Ld.
Metropolitan Magistrate had passed the impugned order in
contravention of the aforesaid legal principle is misplaced and
rejected. However, this Court observes that impugned order of Ld.
Metropolitan Magistrate has not failed adhere to the aforesaid legal
principle. Thus, the reliance placed by counsel for the appellant
husband does not aid the case of the appellant husband.

44. In the case of "Vinny Parmvir Parmar Vs. Parmir
Parmar, (2011)13 SCC112", the point of consideration before the
Court was, what amount would be the reasonable amount that
appellant wife is entitled by way of maintenance from the husband
in terms of Section 25 of Hindu Marriage Act, 1955. The facts of

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 25 of 30
the case are quite distinguishable from the present case. In "Vinny
Parmvir Parmar Vs. Parmir Parmar", the appellant wife was an air
hostess in Cathay Pacific Airlines and resigned from the post as air
hostess after marriage at the instance of respondent husband.
Whereas the respondent was a Senior Commander in Air India
whose monthly income by the Family Court was determined as
Rs.1,40,000/­ per month and the same was affirmed by the Hon'ble
High Court of Bombay. The Family Court fixed the wife's
permanent alimony of Rs.20,000/­ per month and same was upheld
by the Hon'ble High Court of Bombay.

45. This Court observes that the holding of "Vinny Parmvir
Parmar Vs. Parmir Parmar" goes against the appellant husband, as
the Apex Court in paragraph 12 of it judgment held that :

"12. As per Section 25, while considering the claim
for permanent alimony and maintenance of either spouse, the
Respondent's own income and other property, and the income and
other property of the applicant are all relevant material in addition
to the conduct of the parties and other circumstances of the case. It
is further seen that the court considering such claim has to consider
all the above relevant materials and determine the amount which is
to be just for living standard. No fixed formula can be laid for
fixing the amount of maintenance. It has to be in the nature of
things which depend on various facts and circumstances of each
case. The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay, having regard
to reasonable expenses for his own maintenance and others whom
he is obliged to maintain under the law and statute. The Courts

CA No. 421/17 Farooq Ahmad Shala Vs. Marie Chanel Gillier Page 26 of 30
also have to take note of the fact that the amount of maintenance
fixed for the wife should be such as she can live in reasonable
comfort considering her status and mode of life she was used to live
when she lived with her husband. At the same time, the amount so
fixed cannot be excessive or affect the living condition of the other
party. These are all the broad principles courts have to be kept in
mind while determining maintenance or permanent alimony."

46. The Apex Court in "Vinny Parmvir Parmar Vs. Parmir
Parmar" enhanced the permanent alimony/maintenance from
Rs.20,000/­ to Rs. 40,000/­. The reliance placed by counsel for the
appellant husband does not further his cause as the judgment relied
upon is distinguishable not only on facts but also the appellant
husband has suppressed material facts and information from the
Court of first instance.

47. It is settled position in law that the affidavit of assets,
income and expenditure of both the parties is useful to determine
the income of the parties in all matrimonial cases. Applying the
principles laid down in Section 10(3) of the Family Courts Act,
1984 read with Section 165 of the Indian Evidence Act, relating to
the duty of the Court to ascertain the truth and Section 106 of the
Indian Evidence Act relating to the duty of the parties to disclose
their income. It is apparent that the appellant husband has not
disclosed his true income and has suppressed furnishing material
information and documents with regard to his income, expenses,

48. The dictum passed by the Hon'ble High Court of Delhi is
that the affidavit of assets, income and expenditure is to be treated
as guidelines to determine the true income of the parties. The
Courts is at liberty to determine the nature and extent of
information/documents necessary and shall direct the parties to
disclose such relevant information and documents to determine
their true income. The appellant husband has knowingly missed the
mark and not placed material and relevant documents before the
Ld. Metropolitan Magistrate at the time of filing of his affidavit of
income and expenditure, assets.

49. The Hon'ble High Court of Delhi in Kusum Sharma v
Mahinder Sharma - FAO No. 369/1996 judgment dated
06.12.2017 held that if the statements made in affidavit of assets,
income and expenditure are found to be incorrect, the Court shall
consider its effect while fixing the maintenance.

50. This Court observes no illegality and perversity in the
impugned order passed by the Ld. Metropolitan Magistrate. The
parties were directed to file their respective affidavits of income
and expenditure, as per the prescribed format and directions passed
by the Hon'ble High Court of Delhi in Kusum Sharma v Mahinder
Sharma - FAO No. 369/1996 judgment dated 14.01.2015. Further,

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the Ld. Metropolitan Magistrate order dated 20.01.2016
unequivocally states that any omission to file the affidavit or failure
to file the same in the prescribed format or any deviation from the
prescribed format shall be viewed seriously and may result in
imposition of heavy costs on the defaulting party and the version of
opposite party be deemed correct for the purpose of decision of
application for interim relief.

51. The interim maintenance awarded by Ld. Metropolitan
Magistrate is nominal, as the respondent wife lives with three
children, whose biological father is the appellant husband.

52. The affidavit of income and expenditure dated
28.03.2016 along with the supporting documents filed by the
respondent wife is in consonance with the guidelines and the
prescribed format and directions passed by the Hon'ble High Court
of Delhi in Kusum Sharma v Mahinder Sharma - FAO No.
369/1996 judgment dated 14.01.2015. However, the affidavit of
income and expenditure dated 23.03.2016 filed by the appellant
husband fails to muster the guidelines and the prescribed format.

53. With the above discussion and observation this Court
finds no illegality and perversity in the impugned order and does
not deem fit to interfere with the impugned order dated
14.09.2017 passed by the Ld. Metropolitan Magistrate. The appeal

54. However, this order shall not affect the merits of the
legal proceeding before the Ld. Metropolitan Magistrate i.e. the
application under Section 12 of the Act pending between the
parties, as the determination of the same will be done by the Trial
Court after considering the evidence on record and income
affidavits of the parties.

Criminal Appeal record be consigned to record room.
Trial Court Record be sent back to court concerned
along with copy of order.

Copy of the order be given dasti.

ANNOUNCED IN THE OPEN COURT (GULSHAN KUMAR)
ON 02.08.2018 ASJ­03, S.E., SAKET COURTS
NEW DELHI

This was a very difficult case and still is. The police didn’t register her complaints because of the colonial bias as she is a foreigner. The husband filed cases after cases not only against her but also against me(her lawyer) in the hope that I would drop the case. When he failed he tried to threaten me and my family. When we started investigating the matter we found out that he has done similar attrocities on 5 other women from different countries. Hats off to the lady who didn’t run away to her country and rather fights the evil in our society, to my team at Mrinal Madhav & Associates for burning the mid night oil, (literally as many times we had to rush to her house at mid night coz her husband would turn up and create a ruckus), to my wife ( also a lawyer but with the Government) for understanding and supporting our zest for real Justice for this battered lady. At the end the judicial system even though slow, did help us shoe that Laws Exist in India even for foreigners.